In this case, we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court.

From the end of the opinion:

We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.
We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.

The decision was unanimous. Incidently, the process to amend the Iowa constitution requires a majority vote of two successive legislatures, followed by a vote by the general public. Since it doesn't look like there will be a vote in this session, it means that SSM is safe in Iowa for several years at least.

Wonderful! I only hope the IASC will now also see fit to find the law that discriminates against my relationship with my sister (which has already produced a child - a perfectly healthy one) unconstitutional as well. There is no reason same family couples can't get married other than society thinks its "icky". That's discrimination at its finest! Our time will come! Thank you Iowa!!!

But to what end is it when you know that in four years it will be banned again by a majority vote of the people.

Furthermore, given the history of Gay marriage in both Massachusetts, Connecticutt, and Canada, what will the movement have to show for itself by that time. Will they be able to show stronger marriages in five years then those of straights in Iowa. Given the characteristic pattern for Gay marriage in other states and countries the answer is no.

So far the pattern is: get gay marriage, get married, file for devorce, get gay devorce legal and then start on the next political issue. The leaders of the gay marriage movement in Canada devorced within two years, the poster couple for Massachusetts in two years (finalized in five), another couple married in Massachusetts tried to force Rhode Island to recognize Gay marriage and devorce at the same time by filing for devorce in Rhode Island. Good grief we even had Larry Elder in his support of Gay marriage here in California talking about the need to update the devorce code to cover Gay Marriage.

In short, if in two years it appears to have been nothing but a political game for a small minority of people, what will prevent a change to the Iowa Constitution. Besides, the Gays are already working on their next equal rights issue, getting recognition in the census as an ethnic group. For the next few years they will have little time or money to support Gay Marriage initiatives.

-- getting recognition in the census as an ethnic group --
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Hahahah. Let's call the ethnic group "adopted people."
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Better strike "pervert" and "perverted" from the dictionary as potential hate words. On second thought, maybe not. The difference between kinky and perverted? Kinky uses a feather, perverted uses the whole chicken.

Mr. Gibson, I'm not sure what your point is. Regardless of one's views on gay marriage, it seems like legalizing gay divorce (at least in the states that recognize gay marriage) is just a practical consequence of legalizing gay marriage. It wouldn't make a lot of sense otherwise. Given that the heterosexual divorce rate is something like 50%, I don't think it scores a lot of points to note that some of the higher-profile gay marriages have ended in divorce.

A close examination of Iowa Supreme Court decisions will quickly reveal that dissent is actually a rare occurrence. Also, all seven justices of the court were appointed by Democratic governors. Given those factors, it is not unusual that the decision was unanimous.

I also find it significant that the court did not attempt to justify its decision under rational basis review. The court appears to have rejected a "rational basis" or "rational basis with teeth" approach in favor of the far more stringent strict or intermediate scrutiny. With rational basis scrutiny safely out of consideration, I think the decision is far easier to justify--undoubtedly a factor in the unanimity of the decision.

We are firmly convinced the exclusion of gay and lesbianpolygamous people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.
We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty. If gay and lesbian peoplegroups of loving individuals must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.

I've always wanted a farm in Iowa - but never wanted enough kids to run it. Now I just need to find 3 husbands and 3 wives - the Heinlein ideal marriage!

The time has come to admit that this is nothing more than judicial facism. It is a total twisting, and pardon the pun, pervesion of logic.

The creation of a 'class' of people out of thin air is the major problem. There is zero scientific proof that a person in 100% determined to engage exclusively in homosexual acts at the time of their births. Twin studies show that this is not the case. DNA studies show that this not the case. Even homosexual activists who study the issue understand this to not be the case.

Now there are individuals who for factors based in both nature and nurture have sexual attractions to other individuals of the same sex. And there are individuals who for factors based in both nature and nurture have a desire to be in an inebriated state, who want to do violence to people and property, and who want to commit other acts that have been deemed inappropriate to society.

In other words, people are not 100% determined to engage in homosexual acts, but instead decided to. Why should not those choices have consequences? Why must everybody, against their collective will, support and make legal the decisions they don't see as valid?

There seems to be at least one parallel case, that of religion. However we as a society have chosen, as a group, to enshrine protection for the choice of practicing one religion, any religion, or no religion.

But in the case of people who decide to engage in homosexual acts, they must be afforded some sort of legal protection against the will of everybody else? This is why it is a tyrannical decision that isn't based on sound logic. If anybody's choice can be enshrined as a protected group, then the definition of a protected group really has no meaning. And by judicial fiat groups can be created and destroyed by the will of a few people in black robes.

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions. 1 Morris at 9. This decision was seventeen years before the United States Supreme Court infamously decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), which upheld the rights of a slave owner to treat a person as property. Similarly, in Clark v. Board of Directors, 24 Iowa 266 (1868), and Coger v. North West. Union Packet Co., 37 Iowa 145 (1873), we struck blows to the concept of segregation long before the United States Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Iowa was also the first state in the nation to admit a woman to the practice of law, doing so in 1869. Admission of Women to the Bar, 1 Chicago Law Times 76, 76 (1887). Her admission occurred three years before the United States Supreme Court affirmed the State of Illinois' decision to deny women admission to the practice of law, see Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139, 21 L. Ed. 442, 445 (1873), and twentyfive years before the United States Supreme Court affirmed the refusal of the Commonwealth of Virginia to admit women into the practice of law, see Ex parte Lockwood, 154 U.S. 116, 118, 14 S. Ct. 1082, 1083, 38 L. Ed. 929, 930 (1894).

Mark my words, this will lead to people marrying and fornicating with automobiles while teh g4ys and their UN overloards swoop down in black helicopters and put RFID chips in our heads. Oh...and Major League Baseball is watching you right now.

Drake, it looks to me as though the state had conceded intermediate scrutiny.

Plaintiffs argue sexualorientation-
based statutes should be subject to the most searching scrutiny.
The County asserts Iowa's marriage statute, section 595.2, may be reviewed, at most, according to an intermediate level of scrutiny. Because we conclude Iowa's same-sex marriage statute cannot withstand intermediate scrutiny, we need not decide whether classifications based on sexual orientation are subject to a higher level of scrutiny.

If anybody's choice can be enshrined as a protected group, then the definition of a protected group really has no meaning.

I don't think the court is saying that anybody's choice can be enshrined as a protected group. It is saying that a state's classification of people is suspect if that classification is (a) based on membership in a group which has historically been discriminated against; (b) based on something irrelevant to someone's ability to be a productive member of society; (c) based on an immutable characteristic; and (d) based on membership in a politically powerless group. The only one of these four which is seriously in dispute is immutability - and I would submit that the overwhelming majority of people, gay or straight, believe their sexuality to be immutable.

The US Supreme Court has been remarkably unclear in laying down rules for when a group is entitled to heightened scrutiny of classifications which disfavor it; the scheme that Iowa's Supreme Court is using is an attempt to filter out some clarity from a series of inconsistent decisions that don't explain why they are doing what they are doing.

The blackrobed fascists strike again. Was the Iowa Constitution developed and approved with any possible consideration of gay marriage? Doubtful.

But fortunately, a few judges are available to give that consideration, and step on the legitimate constitutional functioning of the state legislature.

Practically, gay marriage is no large issue, but the manner by which it comes about here is troubling. It isn't the People's Republic of Massachusetts, so the Iowa SC may see some fallout from this decision. Perhaps a few lifers could get kicked to the curb, to send the appropriate message to the rest.

To Drake Law Student:
It sounds as if you're disparaging the court's failure to justify under rational basis scrutiny. The whole point of heightened levels of scrutiny is that more justification is necessary when you're dealing with either the power gap of a suspect class or the importance of a fundamental right. No one quibbles about courts' failure to justify decisions under rational basis tests when dealing with racial discrimination or voting rights.

Robert West, the State wanted rational basis scrutiny. Intermediate scrutiny was their fall-back position. However, once you get to intermediate scrutiny, the argument becomes virtually impossible to win, IMO.

Interesting. Although I tend to favor the "principle of least surprises" in how judges should interpret the law, the question of state Constitutional laws inherently create surprises for those of us who don't live in the state. I am willing to to give the court the benefit of the doubt on this one.

Chief Justice Trenus and the author of the decision were both Branstad (R) appointees. The other five were appointed by D governors.

I don't think the Iowa court is very political, compared to most other states, however. I do sense that Cady went out of his way to say how great and open minded Iowans and the court can be, however. Hooray for the corn-growers! But I agree with the decision, as it promotes individual liberty. I'm not too concerned about the polygamists. They are not similarly situated to a one-person/one person marriage. The courts will find a way to screw them if they claim violation of equal protection.

I like the fact the court cited In Re Ralph, the very first reported case in the then-Iowa territory in 1839, even if it was an obvious own-horn-tooting cite by Cady. It is a great look at the looming Civil War issues over slavery, decided at a time when it took guts to do it. Iowa always has been and will continue to be a fairly indepentent-minded and libertarian state.

Not at all. Under rational basis, I believe the same-sex marriage ban should stand. Under heightened scrutiny, it must fall. My problem has always been with other courts, including SCOTUS, who have on occasion failed to apply rational basis properly.

Under heightened scrutiny (i.e., anything more than "rational basis with teeth"), I think the decision fairly interpets Iowa law.

So, I'm glad they stayed away from rational basis, and I would have been upset had they actually went there.

Furthermore, given the history of Gay marriage in both Massachusetts, Connecticutt, and Canada, what will the movement have to show for itself by that time. Will they be able to show stronger marriages in five years then those of straights in Iowa.

Dunno about CT and CA, but MA still has the lowest divorce rate in the country. In fact, divorce rates in blue states as a rule seem curiously lower than place like Utah, where real Americans live (and apparently divorce their spouses twice as often as us fake Americans).

Oh well, I guess it does not matter what political party judges belong to, they can't resist the temptation to exercise the power to make fundamental changes to society.

It is ironic that Iowa makes it very difficult to amend its constitution formally. But the judicial branch can do it with a simple majority vote. I just hope the day never comes that they decide that, because of the crimes against Palestinians, Jews are no longer human beings with civil rights.

I think the court clearly reached the right outcome, I only hope that the Appellees knew what they were doing when they brought this case. It will be a far greater embarrassment for the state, and a setback for marital rights if Iowa follows california with a constitutional amendment, then if they had maintained the status quo.

I'm an Iowa lawyer and Drake Law grad. Might I suggest you do a little quick research before posting inaccurate information? Chief Justice Ternus and Justice Cady (the opinion's author) were both appointed by a Republican governor, Terry Branstad. Also, Iowa uses an appointment process in which a non-partisan nominating commission selects three candidates from which the governor then makes the ultimate appointment. A major reason dissents are rare on the court is that partisan ideology really isn't much in play.

I would agree with your second comment, at least insofar as when SCOTUS has actually declared openly that it is using intermediate scrutiny, that intermediate scrutiny was appropriate.

I would disagree somewhat with your first statement. It sure looks to many of us like "rational basis with teeth" equals is essentially intermediate scrutiny. But when it comes to certain justices, present and former, on the Court (O'Connor comes to mind, I honestly think that they really thought they were applying rational basis.

On Tuesday April 1, the Swedish Parliament decided to implement same-sex marriage from June 1. (This means that the domestic partnership law from 1995 is abolished.) 261 MPs voted in favor, 22 voted against, and 16 abstained.

@Conundrum: "There is no reason same family couples can't get married other than society thinks its "icky"."

It's the question of coercion. Same-family couples have deeper, more intimate knowledge of one another. A fear of the outside world can lead parents to encourage such unions, or an older sibling to manipulate a younger. The potential for this is much higher than it is outside the family group, and while it is possible that unions such as this would arise without coercion, it is not likely.

I find this to be a compelling state interest. I find the same compelling state interest in matters of bestiality: the simple inability to be certain of consent. When you cannot determine to any reasonable degree whether consent has been granted, you must assume it has not. This is a Good Rule.

That said, I would not vehemently oppose a measure to decriminalise either of them. Certainly people keep dogs in uncomfortable situations the dog would not prefer, but it is not considered cruelty; if someone were to be having sex with the dog, that may not be cruelty either. And in the case of siblings, perhaps individual choice and freedom should override the conventional morality.

"I'm not too concerned about the polygamists. They are not similarly situated to a one-person/one person marriage. The courts will find a way to screw them if they claim violation of equal protection."

Yes, sadly, I think you are correct. The blackrobed fascists will find a way to arbitrarily do whatever it is they want to do.
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And no need to kick 4 Iowa SC judges to the curb, ruuffles. Just 1 or 2 pried off their thrones would send the appropriate message to the rest.

In the first reported case of the Supreme Court of the Territory of Iowa, In re Ralph, 1 Morris 1 (Iowa 1839), we refused to treat a human being as property to enforce a contract for slavery and held our laws must extend equal protection to persons of all races and conditions.

Its actually surprising. Most of the early settlers in State of Iowa (pre-1850)were from the south (Alabama, Kentucky, Tennessee), and most of the early leaders were from Virginia. In the early 1850's Iowa was called "the most racist free State in the Union."

The character of the State changed in the 1850's with immigration from Germany, Ireland, and New England. I do not know offhand how the boundaries of the Iowa Territory in 1839 compared to the eventual state boundaries, so there might have been a population in the territory that was not in the eventual State.

I don't think the court is saying that anybody's choice can be enshrined as a protected group. It is saying that a state's classification of people is suspect if that classification is (a) based on membership in a group which has historically been discriminated against; (b) based on something irrelevant to someone's ability to be a productive member of society; (c) based on an immutable characteristic; and (d) based on membership in a politically powerless group. The only one of these four which is seriously in dispute is immutability - and I would submit that the overwhelming majority of people, gay or straight, believe their sexuality to be immutable.

Thank you for making my point. The fact that somebody BELIEVES their sexuality to be immutable is patently false. This really issue isn't whether something is 'immutable' it is whether it is 'deterministic'. Why? Because one may decide to engage in behaviors that make their future behavior unchangable. And we as a society don't enshrine and protect and support such choices.

Further whether people believe their sexuality to be immutable is besides the point. It isn't deterministic, science has proven that over and over and over again.

Does this mean we can 'decide' that any class is protected just because people 'feel' that some behavior it is immutable without any proof? Such a situation again means that these protections are just the whim of whoever makes the decision.

No problem, and I apologize for "piling on"; your correction and a couple of other people making the same point about appointments posted while I was typing.

In any event, who appointed whom to the bench really is of little relevance to any analysis of Iowa supreme court cases, as the court here simply is not ideological in the way that many courts are (e.g., Alabama, Texas, Michigan, and the US Supreme Court leap to mind). Add in Iowa's rather "collegial" approach to the practice of law, and you end up with vrey few dissents. At most, you occasionally see a plaintff/defense lawyer divide in some cases, and a rural/urban divide in other cases, and those are extremely rare.

@Caliban: "Same-family couples have deeper, more intimate knowledge of one another."

Yes, we would hate to have people in a relationship to have a deep, intimate knowledge of each other.

I'm sorry, but the only reason that anyone supports same sex marriage and not same family marriage is because they have decided one is "right" and the other is "wrong". Which is fine, but the equal rights for all argument falls on deaf ears when you're not included in the "all".

"It is a total twisting, and...pervesion of logic" to reduce the desire to marry to the desire to engage in sexual "acts".

I am not making the marriage == sex comparision, SSM advocates are.

They make such a comparison by stating that forcing men to only marry women violates the 'immutable' sexual nature of some people. If marriage != sex then their point wouldn't matter to the descision of whether marriage should be restricted to opposite sex partners only.

I believe in complete separation of marriage and state. However, pending that occurrence, equality under the law requires that same-sex couples be allowed to marry. What does puzzle me is how would a court justify prohibiting two brothers from marrying each other.

Thank you for making my point. The fact that somebody BELIEVES their sexuality to be immutable is patently false. This really issue isn't whether something is 'immutable' it is whether it is 'deterministic'. Why? Because one may decide to engage in behaviors that make their future behavior unchangable. And we as a society don't enshrine and protect and support such choices.

Further whether people believe their sexuality to be immutable is besides the point. It isn't deterministic, science has proven that over and over and over again.

Does this mean we can 'decide' that any class is protected just because people 'feel' that some behavior it is immutable without any proof? Such a situation again means that these protections are just the whim of whoever makes the decision.

The Iowa Supreme Court wrote:

we agree with those courts that have held the immutability "prong of the suspectness inquiry surely is satisfied when . . . the identifying trait is 'so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change [it].' "Kerrigan, 957 A.2d at 438 (quoting Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in the judgment)); see also In re Marriage Cases, 183 P.3d at 442 ("Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.").

Which is fine, but the equal rights for all argument falls on deaf ears when you're not included in the "all".

Ahh, but the equal rights for all argument, even in its most liberal form, does not say the state may make no classifications between citizens; it says that certain classifications are suspect classifications, while others aren't.

A law banning blind people from driving is presumptively constitutional even though it differentiates between citizens on the basis of a physical disability, because the state interest involved is compelling and the restriction is narrowly tailored to the state interest. (Although, note, a court would almost certainly decide this on rational basis review; i'm merely pointing out that it would pass strict scrutiny, as well).

The argument is that classifying citizens on the basis of sexual orientation requires a higher level of scrutiny, and that such classifications must be substantially related to an important state interest.

I think if you can come up with an argument that classifying citizens on the basis of their desire to marry other members of their family requires a higher level of scrutiny, then you might have a case; but I don't see a way to make that argument within the framework courts are using for determining when a classification gets heightened scrutiny.

I should proof-read my typing before posting. Especially after being struck in the forehead with a stone.

Re: immutability. The court was wise not to try to decide that prickly issue. But why even bother in the first place? Religion certainly is not "immutable", and that has always maintained a high degree of protection.

Here, I even think rational basis fails. The real basis for the statute is "we don't like homos." That's not a rational basis to support discrimination.

Strawman. The case all marriage advocates are making is that humans pair-bond, we have biological mechanism that do this between adult humans, it is closely tied and generally reinforced by sexual congress, especially initially, but is not 100% dependent upon it.

It is the right to pair-bond, for a citizen to have reasonable opportunity to merge their lives as a family unit and for the state to equally recognize this and encourage and facilitate this relationship for the benefit of the citizens, their families, and society that is being advocated.

For many sex is an important aspect of this relationship but it is not essential for all nor mandated by the civil contract. But to be true to the spirit of the biological basis of this pair-bonding and its supporting contract, those that do find sex essential to the equation should have license to the supporting contract regardless of the gender of their spouse when there is no compelling reason to disallow it other than the tired 'because its the way we always done it before' logical fallacy.

Is it appropriate to suggest that because one's partner is of the same gender, and the relationship is a homosexual one, that partner is not considered a member of your family?

I don't think it is. In fact, I think that distinction is arbitrary, motivated by fear and anger - and even jealousy.

I don't think this should stop at the question of SSM, though. There are a lot of family groups that aren't recognised by the state, and we need to repair this injustice across the board.

Let's be clear. The SSM crowd is not looking for 'rights' they are looking for 'legitimacy'. Civil unions in various states that afford same sex couples the same 'rights', like inheritance, hospital visits, etc., are not acceptable to them. Marriage is what they want, because it places their unions on the same footing as those of heterosexual couples.

I'd be fine with contracted rights and obligations between the parties, not state sanctioning of the partnership.

The SSM construct takes away the ability for private individual to enforce consequences for the private descison of two people to engage in their relationship. Can a private bed and breakfast refuse to let two men stay in the same room overnight? Can they refuse to let a man and a woman who aren't married? Can they refuse to let a man and a man who are married? Can they refuse to let a man and a woman who are married?

Discrimination based on maritial status is generally restricted, so if two men who were 'married' were refused service they could claim discrimination on this basis. In spite of teh fact that such discrimination is part of people's religious beliefs. Is their made up right to marry, based on nothing more than a made up belief that they can't help themselves but to have sex with members of their own sex, more important than the 1st Amendments protection of the free expression of religion? (It's that little part of the 1st Amendment that people tend to forget)

In spite of the fact that such discrimination is part of people's religious beliefs.

They have no right to pretend that the couple shares their belief in providing a public accommodation. Their freedom of expression of their religion stops at the end of their nose and involves no one else's.

I'd also like to comment that it's SSM not gay marriage that gets legalized. Even though the decision goes to great lengths to talk about how homosexuals are discriminated against, by having SSM legalized, there's nothing to stop two heterosexuals from entering into a SSM (provided they're not closely related under the current discriminatory law). I know you'll say that that probably won't happen, but there are lots of single mothers that live with other single mothers who currently support each other (sometimes living together) who can benefit from SSM being legal (tax deductions, medical insurance, etc.), and I might advise that they do so as their attorney.

Sure, heterosexual opposite sex marriages can be shams too, but I doubt there will be as many incentives to enter into similar relationships.

@scattergood: Let's be clear. The SSM crowd is not looking for 'rights' they are looking for 'legitimacy'. Civil unions in various states that afford same sex couples the same 'rights', like inheritance, hospital visits, etc., are not acceptable to them. Marriage is what they want, because it places their unions on the same footing as those of heterosexual couples.

Scattergood may allege that gay people are unhappy with civil unions because they want legitimacy. The problem is that civil unions themselves lack legitimacy.

New Jersey took on civil unions as an experiment. They were supposed to be treated exactly the same as marriages. What happened? People in civil unions were not treated as if they were married couples and when they sought to obtain benefits given to married couples, they had to initiate lawsuits to do so.

I live in California where domestic partnerships have nearly all the rights of marriage. In my own experience, when I wanted to exercise one of those rights, I had to hire a lawyer. After much expensive back-and-forth, the other side conceded that I did indeed have those rights. No, they didn't pay my legal fees.

No matter how much civil unions or domestic partnerships are made to be like marriage, every step in thereafter is new territory. As the Massachusetts Supreme Judicial Court noted, "separate is rarely, if ever, equal."

Take it from someone who's there: gay people want equality. Is there an argument for anything less?

If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.

One wonders what kind of arguments the courts would find to be exceedingly persuasive. What if we make the broad sociological argument that formal recognition of non-traditional [Western] marriages fundamentally alters the society in ways the legislature would like to avoid? What if we wait a decade or two, start doing some studies, and putting numbers to the effects?

To take another class as an example, I can put a tangible number to the costs for a business to comply with the Americans with Disabilities Act. Presumably, the legislature made a conscious decision that the expected benefit to disabled persons outweighed the broader social economic costs. What if those costs doubled, or tripled? Surely at some point the legislature should be allowed to say the balance of the equation has tipped... or that an incremental further accomodation was not warranted, given the cost?

Whatever you think of the merits of SSM, the quoted sentence just screams "rule by judiciary" in rather bald language.

Strawman. The case all marriage advocates are making is that humans pair-bond, we have biological mechanism that do this between adult humans, it is closely tied and generally reinforced by sexual congress, especially initially, but is not 100% dependent upon it.

It is the right to pair-bond, for a citizen to have reasonable opportunity to merge their lives as a family unit and for the state to equally recognize this and encourage and facilitate this relationship for the benefit of the citizens, their families, and society that is being advocated.

For many sex is an important aspect of this relationship but it is not essential for all nor mandated by the civil contract. But to be true to the spirit of the biological basis of this pair-bonding and its supporting contract, those that do find sex essential to the equation should have license to the supporting contract regardless of the gender of their spouse when there is no compelling reason to disallow it other than the tired 'because its the way we always done it before' logical fallacy.

Your argument is extraordinarily flaws. I agree that humans have a desire to pair bond. I agree that, as you say, for a citizen to have reasonable opportunity to merge their lives as a family unit and for the state to equally recognize this and encourage and facilitate this relationship for the benefit of the citizens, their families, and society that is being advocated.

However the issue is whether it is 'reasonable' to demand that ALL pair bonding be encouraged and sanctioned by the state. The argument that SSM proponents make is that their descision to have sex with people of the same sex is determinist and immutable and thus it is NOT reasonable to make a distinction on what two partners can pursue a pair bonding. This is simple not the case, as science has proven over and over and over again.

So again, it is the SSM folks who have injected sexuality into the discussion, not me.

I know you'll say that that probably won't happen, but there are lots of single mothers that live with other single mothers who currently support each other (sometimes living together) who can benefit from SSM being legal (tax deductions, medical insurance, etc.)

A married couple cost society less than 2 singles. The meager benefits are recouped by putting a spouse between the responsibility of the state to the individual citizen. There are many mutual financial responsibilities that go along with the civil contract - the primary reason so many poor couples are not licensing the contract is because it is more expensive for them to be married than 2 singles as they loose out on may state support mechanism once they are viewed as a single economic unit.

"Not liking homos is not the same as the state deciding which kinds of relationships it will recognize as marriage."

Unless that's the only reason given, or all the other reasons given fall apart at the slightest logical scrutiny.

Ever reason other than "but it's two people of the same sex!" falls apart because either a) straight people in the same situation are allowed to marry or b) gay people can do it without getting married, or both.

As the decision delved into, with examples like infertile opposite sex couples and gay people who already have children they are raising legally without the benefit of marriage.

Okay, there are some reasons given that fall into the "if we allow some people to do something with their marriage, it will automatically destroy other people's marriages" which I contend still falls into the "straight people can do it" category. See Britney Spears and Elizabeth Taylor.

One wonders what kind of arguments the courts would find to be exceedingly persuasive. What if we make the broad sociological argument that formal recognition of non-traditional [Western] marriages fundamentally alters the society in ways the legislature would like to avoid?

Could you maybe be a little less broad? Enacting a classification in order to maintain a classification is a bit circular, don't you think?

A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged. When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification. In other words, the equal protection clause is converted into a " 'barren form of words' " when " 'discrimination . . . is made an end in itself.' " Tussman &tenBroek, 37 Cal. L. Rev. at 357 (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L. Ed. 131, 135 (1915)).

"The right to pair-bond"??? Ha ha! "Do you, Bob, pair-bond yourself to Joe, the pair-bondee?" If people want to advocate gay marriage, they ought to come up with a non-ridiculous way of describing their relationships.

In any event, the fun part of the opinion is where the Iowa court decides that an immutable characteristic is one that is "central to one's identity." Now, I may be a white man on the outside, but I am a black man on the inside. I am discriminated against by affirmative action programs that only judge me on the color of my skin and my European heritage. How dare the government discriminate against my group: black men stuck in white men's bodies? Why should I be forced to alter my skin tone (a la Michael Jackson) to escape the pernicious thumb of discrimination?

Darklock, the idea that polygamy is banned because of the intimate prior relationship of siblings is not at all persuasive, but is at least coherent. The bestiality argument, on the other hand (that we can't "be sure of consent"), is just preposterous. The dog needs to consent for behavior to be legal?

If so, I'm in trouble - just this morning, I insisted my dog go outside to poop. Later, I actually *ate* a tuna (and I had never even met him before)!

Probably true, and you make some nice points about poorer people not getting married so they can get state benefits only available to singles, but not my point. Medical insurance is a big reason cited for why marriage is necessary for SS couples. There would still be heterosexual same sex couples who could benefit from being in a SSM. That's all I'm pointing out.

"Surely at some point the legislature should be allowed to say the balance of the equation has tipped... or that an incremental further accomodation was not warranted, given the cost? "

Adam, Eve, Amy, Steve - all singles.

Adam marries Eve, Amy marries Steve. This may or may not result in increased costs to the state, but those costs are not considered in any way in determining their eligibility to marry.

Adam marries Steve, Amy marries Eve. This may or may not result in increased costs to the state, but the mere possibility that they MAY result is given as a reason to summarily deny the marriages.

Given that people marry in pairs, and that there are roughly similar numbers of men and women, and that if every single one of them paired up in opposite sex marriages the cost would never be considered (ie, the money is available to absorb the marriages), the whole cost issue is null.

Unless the budget is based on the financial considerations involved in denying same-sex couples the right to marry. Which is right back to singling out a specific group of people for discriminatory treatment.

If it's so expensive to let people marry, then deny 3% of marriage licenses to random couples regardless of orientation rather than singling out the gay ones.

However the issue is whether it is 'reasonable' to demand that ALL pair bonding be encouraged and sanctioned by the state.However the issue is whether it is 'reasonable' to demand that ALL pair bonding be encouraged and sanctioned by the state.

Another straw man, that isn't the issue since no one is asking that all possible pair bondings be encouraged. Our pair-bonding mechanism are those attracted to adult men and those attracted to adult women, all that's being asked is that all citizens with these acceptable attractions be able to license their relationship with their spouse with the state. There are many other possible pair-bonding possibilities that are excluded for everyone - so your thesis is flawed.

The argument that SSM proponents make is that their descision to have sex with people of the same sex is determinist and immutable and thus it is NOT reasonable to make a distinction on what two partners can pursue a pair bonding.

Is that a strawman or a red herring? Again, there is no requirement for sex in the civil contract at all. That sex is a major catalyst and glue to the pair-bonding of some citizens is almost irrelevant as long as all citizens that naturally do so with a man or a woman have reasonable equal access to the contract in its support.

That's what's changed, that's what's different. In the past people might have thought the attraction mechanisms were to 'same' or 'opposite' genders and if that were indeed the biological mechanisms in play then picking one as good and one as bad could make sense. But we know that's not true - there is no biological equivalent to 'peeking in your pants' before the attraction mechanisms kick in - we are naturally attracted to men and women, not same and opposite. As such the state needs to acknowledge the commonality of origins of this basic human right and if its going to allow some citizens to license their relationship spawned from their attraction to a gender then they really do need to do so for all citizens.

It is ironic that Iowa makes it very difficult to amend its constitution formally. But the judicial branch can do it with a simple majority vote. I just hope the day never comes that they decide that, because of the crimes against Palestinians, Jews are no longer human beings with civil rights.

Ah, the slippery cliff argument aka the slippery tightrope argument.

Not to worry, should the Iowa Supreme Court take this next step, I'm 75 percent sure the U.S. Supreme Court would hold that this classification violates equal protection. Sure, it would withstand rational basis scrutiny, but the U.S. Supremes would probably apply strict scrutiny because religion/ethnicity is involved.

If people want to advocate gay marriage, they ought to come up with a non-ridiculous way of describing their relationships.

Provide one that describes the biologically based mechanism that forms the basis of a citizen's innate right to marry. What do you call the 'force' that makes people marry in same or opposite gender spouses with or without the civil contract licensed by the state?

I guess if the only complaint is you think the term is 'silly' then I guess the argument is pretty much won, right?

@Lymus "Unless that's the only reason given, or all the other reasons given fall apart at the slightest logical scrutiny."

For me, they simply don't. Not liking people who engage in a certain behavior is simply different than deciding which relationships will be officially recognized by the state. Otherwise, the same rational that is applied to SSM, should apply to same family marriage, and possibly polygamy.

Which is not to say you can't make a determination that SSM is ok and same family marriage is wrong, but if a determination is going to be made, I think it should be made by the majority of the people and not a small group.

Hans Bader makes claims about the basis for the low divorce rate in MA with no citation to data to back up his assertion that the rate reflects its heavily Roman Catholic population. In fact, available data is at odds with the claim. The ARIS study is the most comprehensive recent study of religion in the United States; it can be found at http://www.gc.cuny.edu/faculty/research_studies/aris.pdf

The data reported on page 27 reflects that 9% of adult Roman Catholics are divorced; that's the same percentage as reported by those who identify as Christian and as reported by those who identify as having no denomination. The low divorce rate in MA is not a reflection of the religious affiliation of its population.

Could you maybe be a little less broad? Enacting a classification in order to maintain a classification is a bit circular, don't you think?

First, I think this decision was probably correct. I think it is unfair for some folks here to categorize it as judicial activism. In fact, I read Thomas's dissent in Lawrence as "you guys raised the wrong arguments. Come back with a rational basis argument next time." So even on the US Supreme Court, the only one who seems to feel that there IS an inherent rational basis to open discrimination against gays is Scalia, though we haven't really heard from Alito or Roberts (I think is fairly clear that at least Roberts' methodology would not likely support such open discrimination).

However, there is an argument that enacting such a classification wouldn't be entirely circular but rather fulfilling the basis of the equal protection guarantee in the first place. This guarantee was intended primarily to prevent former slaves from becoming second-class citizens. I don't think there was any intent to change structures of social institutions, such as families, in that amendment. So one could argue that this sort of thing is outside the equal protection guarantee.

I personally think such an argument is wrong. Furthermore that was NOT the question before the court, since Iowa ALREADY had recognized such rights prior to the adoption of the 14th Amendment. Thus even if you take a very narrow view of the 14th Amendment, it doesn't address what the Iowa Constitution requires. Thus the question of what the Iowa Constitution requires of the Iowa government is FUNDAMENTALLY severable from what the 14th Amendment requires.

It seems to me from the opinion, the consensus on the court was that the IOWA constitution was QUITE A BIT stronger in this protection than the 14th Amendment.

Is that a strawman or a red herring? Again, there is no requirement for sex in the civil contract at all. That sex is a major catalyst and glue to the pair-bonding of some citizens is almost irrelevant as long as all citizens that naturally do so with a man or a woman have reasonable equal access to the contract in its support.

That's what's changed, that's what's different. In the past people might have thought the attraction mechanisms were to 'same' or 'opposite' genders and if that were indeed the biological mechanisms in play then picking one as good and one as bad could make sense. But we know that's not true - there is no biological equivalent to 'peeking in your pants' before the attraction mechanisms kick in - we are naturally attracted to men and women, not same and opposite. As such the state needs to acknowledge the commonality of origins of this basic human right and if its going to allow some citizens to license their relationship spawned from their attraction to a gender then they really do need to do so for all citizens.

Thank you for making my point. That you don't understand that you have is what is humorous. Let's try this really slowly:

Q: What is the basis of the descisions to remove the restriction that marriage be between a man and a woman?

A: The fact that some people's attraction to people of the same sex is immutable and deterministic, enough at least, that it is unreasonable for the state to restrict marriage to between a man and a woman. Thus to restrict marriage to between a man and a woman would deny said individualy their 'equal protection'. Denying them their 'innanate sexuality' that is immutable denies them some basic and fundamental right.

So again, it is the SSM crowd that, by falsely asserting the immutability of their sexual attractions, have introduced the sex == marriage issue.

A fear of the outside world can lead parents to encourage such unions, or an older sibling to manipulate a younger. The potential for this is much higher than it is outside the family group, and while it is possible that unions such as this would arise without coercion, it is not likely.

I find this to be a compelling state interest. I find the same compelling state interest in matters of bestiality: the simple inability to be certain of consent. When you cannot determine to any reasonable degree whether consent has been granted, you must assume it has not. This is a Good Rule.

What data are you using to estimate the likelihood of uncoerced same-family relationships? Is this assertion based on anything more substantial than personal intuition/prejudice? I agree that coerced same-family relationships are wrong but that doesn't speak to the relative incidence of uncoerced. Just because all rape is sex does not mean that most sex is rape.

As far as not assuming consent for pets: by this doctrine, every veterinary procedure is an act of battery. We do stuff to pets all the time without consent.

Iowa Supreme Court to Democracy: Drop Dead.

As it should be, it many cases. Ever hear of the principle of "tyranny of the majority"? Democracy is two wolves and a sheep voting on what's for dinner. One of the purposes of constitutions and courts is to provide a check on pure democracy.

People in civil unions were not treated as if they were married couples and when they sought to obtain benefits given to married couples, they had to initiate lawsuits to do so

ie, they had all the same rights as married couples and could sue to enforce them. The argument you'd have to make is that others' failure to respect those rights was caused by CU status, rather than by their sexual orientation.

We have no reason to think that (and, IIRC from the report, good reason to think otherwise).

I don't think there was any intent to change structures of social institutions, such as families, in that amendment.

The reason why all this being argued in the courts in the US is the unique legal history there. To my knowledge, every other country to have legalised SSM has done so through a parliamentary vote. (Including Sweden.) Loving made sense on its facts, but it placed marriage within the ambit of the equal protection clause. Even though I would never compare the discrimination against gays to the discrimination against blacks, given the Loving precedent, you can't say that equal protection can't touch marriage.

More generally, there are many self-proclaimed textualists who abandon their faith when it comes to SSM. Whatever the purpose of the 14th amendment, its text says nothing about protecting former slaves but not other suspect classifications.

@Gabriel: "As it should be, it many cases. Ever hear of the principle of "tyranny of the majority"? Democracy is two wolves and a sheep voting on what's for dinner. One of the purposes of constitutions and courts is to provide a check on pure democracy."

In some cases, yes, but certainly not all. The court's job is to interpret the law, not help political losers. Sometimes there's a reason a minority is in the minority.

"It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of
marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian
person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all. Under such a law, gay or lesbian individuals cannot simultaneously fulfill their deeply felt need for a
committed personal relationship, as influenced by their sexual orientation,and gain the civil status and attendant benefits granted by the statute. Instead, a gay or lesbian person can only gain the same rights under the 31
statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class—their sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so "closely correlated with
being homosexual" as to make it apparent the law is targeted at gay and lesbian people as a class."

Was that the sound of a door opening? After conceding that the facially neutral law applies equally all individuals, the Court finds backwards route to draw the classification it desires. Do the justices really believe this is serious legal analysis? So, now, nearly any law that actually applies equally to all people can be said to discriminate on some invisible classification as long as the individual being denied some benefit is forced to negate the very trait that defines their class.

So, a law that says neither non-polygamists or polygamists may marry more than one person, the law must actually classify against polygamists because it negates them the very trait that defines their class. Likewise, prohibiting all individuals to marry their siblings, must inherently classify based on those that want to engage in incest because it seeks to negate the very trait that defines their class. after all, these folks cannot "simultaneously fulfill their deeply felt need for a committed personal relationship ... and gain the civil status and attendant benefits granted by [some] statute." and the list can go on and on.

As I asked in the beginning, what has truly been accomplished. Eugene has already put out a new thread showing that even if the State legislature can't put forth a amendment this session, next year a convention can be called to consider amendments. Thus the amendment can be put to the people in a special vote in 2011, potentially as early as Nov of 2010.

You can call me a bigot if you want, but I am truthfully asking to what end is this accomplishing. Going through the courts to force a change on the People instead of having change done by a vote of the people doesn't make friends and influence people. Then using loopholes in the system to buy time and make the change back as difficult as possible doesn't make the situation any better.

Was that the sound of a door opening? After conceding that the facially neutral law applies equally all individuals, the Court finds backwards route to draw the classification it desires. Do the justices really believe this is serious legal analysis?

Has anyone in this thread actually read the Iowa State Constitution or studied their precedents on the interpretation of the equal protection clause there in?

I know I haven't, and I suspect the answer is probably no for everyone else. It's rather presumptious to assume that just because you're unhappy with the ruling, the must necessarily be misinterpretting the state constution.

@Conundrum: I'm sorry. The area of law that I am officially supposed to be a specialist on in European Community law, which is full of case law on discrimination. However, since those cases are usually about boring matters like quality standards for French cheese, they tend to discuss direct and indirect discrimination in a more dispassionate fashion. So someone implying that facial neutrality is all that matters will tend to irk me a little.

You far overrate the importance of your opinion to others I think. No its not about 'acceptance' its about equal treatment under the law, that naturally married citizens are treated equally no matter the gender of their spouse.

Its about living in a state that doesn't have unconstitutional laws that discriminate between citizens as a result - The mutual 'acceptance' that this is the honorable task of the judiciary is all the acceptance I personally need.

Thus the amendment can be put to the people in a special vote in 2011, potentially as early as Nov of 2010.

No, the earliest possible is 2011. Required steps are as follows:
Legislature passes in session of 2010 (sessions are generally January to April
General election of 2010
New legislature passes in session of 2011
Vote in 2011 as directed by the legislature.

Proponents of SSM are quick to ridicule even the mention of this, but it seems to me that there are far-reaching unintended consequences of this issue. If marriage between a man and a woman can be legally redefined as between people of the same sex because of equal protection of the law and the fact that homosexuals are a (currently) approved victim group, what will be done with Muslim "marriages" as they continue to gain power?

They have already managed to get themselves defined as a victim group, claiming discrimination by pretty much everyone not Muslim. They also believe that a grown man, even older ones, have the right to marry girls as young as nine, and in fact often do so in Muslim nations and it is even occurring in European countries now as well. They also have a propensity for marrying first cousins, which they do at an alarming rate in Muslim communities:

"In Denmark, 40% of Pakistani couples are relatives." - in the UK that figure stands at 75% for first cousin marriages - among the Pakistani community - while in Pakistan the figure stands at 67%."

The UK has now even given in to polygamy, granting welfare benefits to multiple wives, and cases of it are common in Canada and are not unknown in the US:
Dhimmi Watch

These forms of "marriage" are sanctioned by the Koran and Sharia law, so they can also claim religious discrimination if we don't allow their forms of marriage.

What will be the legal logic that could possibly be used to "discriminate" against the preferred marriage practices of Muslims, especially since their religion specifically approves of marriages that we now look askance at: polygamy, paedaphilia, and with first cousins.

I'm certain I'll be attacked as homophobic for even raising this issue, but if this is not a clear cut case of the slippery slope in action, I don't know of a better one. I really could care less one way or the other about SSM, but it looks certain to lead us down some very unpleasant paths with regards to Muslims.

I really would like to hear some serious arguments at to why this won't happen here.

Ummm... thanks. Not my point. SSM would be allowed for heterosexuals. There's no requirement they are romantically involved or have consummated their relationship. An insurance company may investigate the marriage, but the "couple" would be completely justified in stating they were still married, and the marriage wouldn't be considered a "sham".

Heck, I have gay friends that do this now in order to get "partner" benefits from a friend's insurance company that will recognize them.

There is zero scientific proof that a person in 100% determined to engage exclusively in homosexual acts at the time of their births. Twin studies show that this is not the case. DNA studies show that this not the case. Even homosexual activists who study the issue understand this to not be the case.

You are entirely correct. Fortunately 100% genetic determinism wasn't a grounds of the court's decision:

A clinical psychologist testified [for appellants that] sexual orientation is not as defined and stable as race and gender and can change over time. He acknowledged, however, it is difficult to change a person's sexual orientation, and efforts to do so can be harmful to the person.

The court does not attempt to refute or reject the quoted testimony and nowhere in the opinion does the court state or imply that sexual orientation is either immutable or determined at birth (which of course are not the same thing).

Judges appointed by state governor, who was himself elected by citizens of the state, applying caselaw decided by other state judges, to reach a unanimous conclusion about the scope of the state constitution, which the members of the state legislature (elected by citizens of the state) could address through a state amendment if they so choose.

Yet this will be offered as evidence of why we need a federal marriage amendment, to protect federalism.

So, a law that says neither non-polygamists or polygamists may marry more than one person, the law must actually classify against polygamists because it negates them the very trait that defines their class.

And isn't that the obvious reading? It seems patently obvious that the law discriminates against polygamists, regardless of whether or not there's express language of discrimination. ("we hereby discriminate.....")

Given that, the proper constitutional analysis is whether there's ample reason to discriminate in that fashion.

They also have a propensity for marrying first cousins, which they do at an alarming rate in Muslim communities

You do realize that the majority of US states allow first cousin marriages, right?

As to the threat of 'polygamy', middle eastern, biblical, and Mormon plural marriages are all 'polygyny' with only the man able to have multiple marriage contracts to individual wives. Discrimination by gender is incompatible with US law as was pointed out in Reynolds. Add in that 'marriage equality' is about equal access to the existing contract who's provisions doesn't support non-mutually exclusive licensing, and the fact that the possibly constitutional true polygamy would NOT be what any of the practitioners of polygyny want (they don't want to be married to all their spouses together so they could 'vote' to overrule the male, they do NOT want their wives with the legal right to take another husband) this really isn't a big issue other than as a red herring.

Can we please get this concept right. There are about two heterosexual marriages for each heterosexual divorce each year. But there is an enormously larger number of heterosexual married couples at any given time than there are heterosexual marriages in a given year. Think of a thousand-gallon tank of water with ten gallons a minute flowing in and five gallons a minute flowing out.

Based on my observations of the news, it would appear that the probability of a heterosexual marriage ending in divorce is probably at least an order of magnitude lower -- if not more so -- than the probability of a homosexual marriage ending in divorce

geokstr: "I really would like to hear some serious arguments at to why this won't happen here."

9/11. We can just say that and continue to discriminate against them.

Just kidding of course.

Seriously though, NY allows first cousins to marry as it is, but not siblings. NY prevents recognizing marriages that would "shock the conscience" that occur elsewhere, which still includes marrying someone as young as 9, but no longer includes gay marriage. I agree with you that things may continually be eroded, which is why what defines marriage should be decided by a legislature, and not a court.

So, (leaving aside or assuming no fundamental right to marriage), a law preventing marriage between the races that applies to both white and black people would pass muster under equal protection? It doesn't classify anyone, right?

We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.

But gay and lesbian people weren't excluded from the institution of civil marriage under the old rules. I'm sure that Cole Porter and John Maynard Keynes would have no more trouble getting married in Iowa back then as they did getting married in whatever jurisdictions their marriages were contracted.

SSM would be allowed for heterosexuals. There's no requirement they are romantically involved or have consummated their relationship. An insurance company may investigate the marriage, but the "couple" would be completely justified in stating they were still married, and the marriage wouldn't be considered a "sham".

Heck, I have gay friends that do this now in order to get "partner" benefits from a friend's insurance company that will recognize them.

What constitutes a bona fide marriage is fairly well settled law. Courts adjudicate it all the time for immigration purposes.

@oren: "What constitutes a bona fide marriage is fairly well settled law. Courts adjudicate it all the time for immigration purposes."

Irrelevant. Immigration won't be an option as its federal law. Courts won't be adjudicating SSMs in most circumstances. Think about it. I register John as my spouse. We comply with everything we need - e.g., state tax filings, apartment rental, etc., etc. Really, we're just best friends, and not romantically involved, but he's my I.C.E. guy anyway, so we just made it legal. No one is going to investigate if we're having sex too.

Neither of these are difficult issues to overcome. Couldnt they both be limited to the first spouse?

Seems like there might be some knotty discrimination arguments against that. You'd be treating wives 2-5 as less deserving of benefits than wife #1. What would be the grounds for that, that they didn't get there first?

Conundrum:
I think giving any man two mother-in-laws would be considered cruel and unusual punishment, which is unconstitutional.

Seems like there might be some knotty discrimination arguments against that. You'd be treating wives 2-5 as less deserving of benefits than wife #1. What would be the grounds for that, that they didn't get there first?

The better way would simply be to require that the employer provide the benefit based on the employee's status as "married" or "unmarried." If you're married to more than one person, the amount of the benefit remains the same. It means that each spouse shares in the benefit jointly.

-- The better way would simply be to require that the employer provide the benefit based on the employee's status as "married" or "unmarried." --
.
That's discriminatory too. What about people who choose to marry themselves, also known as "being single." If a single person decides to take care of a houseful of children, what grounds does the state (or an employer) have to require that person to "pair up" in order to obtain benefits that would accrue to a "pair?"

People in civil unions were not treated as if they were married couples and when they sought to obtain benefits given to married couples, they had to initiate lawsuits to do so

ie, they had all the same rights as married couples and could sue to enforce them. The argument you'd have to make is that others' failure to respect those rights was caused by CU status, rather than by their sexual orientation.

It was absolutely about the domestic partnership status. Essentially, we were told, "well, we know we have to treat you as married in all respects, but we're not sure if all covers everything."

The eventual conclusion was that all does cover everything.

I'm still out cash for a lawyer. It still took months of effort when any couple with a marriage would have been told, "yup, that's your right."

Even when the state proclaims that a civil union or domestic partnership has all the rights of marriage, couples in these new arrangements are truly on their own legally.

Had my experience been that when faced with a couple in a CU/DP, everyone says, "why that's just as good as married," I might feel differently.

My experiences and the experiences faced by other couples in this situation show otherwise. If CU/DPs were every bit as good as marriage, no one would have had these experiences.

To elaborate on the words of the Massachusetts SJC, the only reason we every make something separate is to make it unequal.

"What's the matter with polygamy between consenting adults? I cant figure out why anyone would care"

Too lazy to Google the relevant links from work, but the general problem is what currently happens in Saudi Arabia: the rich and their sons tend to marry up all the desireable brides (for lack of a better term, but you get the general idea), which tends to leave an underclass of surplus unmarried young males.

Marriage is a valuable social institution, but it is not an egalitarian one.

The reason why all this being argued in the courts in the US is the unique legal history there. To my knowledge, every other country to have legalised SSM has done so through a parliamentary vote. (Including Sweden.) Loving made sense on its facts, but it placed marriage within the ambit of the equal protection clause. Even though I would never compare the discrimination against gays to the discrimination against blacks, given the Loving precedent, you can't say that equal protection can't touch marriage.

More generally, there are many self-proclaimed textualists who abandon their faith when it comes to SSM. Whatever the purpose of the 14th amendment, its text says nothing about protecting former slaves but not other suspect classifications.

First I think the argument is flawed, since such an extremely limited view of equal protection would fly in the face of over a century of case law. Since even Plessy v. Fergusson, the interpretation was to ensure that all Americans received equal protections under the law (as structurally flawed as the test in Plessy was, the central holding that the 14th Amendment requires equal treatment still seems to be good law, IMO).

However, at the same time, the basic guarantee is just that like must be treated as like without a rational basis for treating it otherwise. In some cases (race, gender) there is a higher level of scrutiny, either strict (in the case of race) or intermediate (in the case of gender). A good example might be the fact that nobody argues that separate-but-equal restrooms on the basis of gender is unconstitutional, but if we offered racially segregated restrooms..... What level of protection gays get under various circumstances doesn't seem to me to be entirely settled.

However, let's all be fair. This was NOT the question before the court. The Court did NOT rule whether the US Constitution requires that the states recognize gay marriage as a matter of equal protection. What the court ruled was that the State Constitution provides such a requirement. The fact that Iowa has a long history of stronger protections would have weighed heavily in such an analysis.

Too lazy to Google the relevant links from work, but the general problem is what currently happens in Saudi Arabia: the rich and their sons tend to marry up all the desireable brides (for lack of a better term, but you get the general idea), which tends to leave an underclass of surplus unmarried young males.

That is why I think that fundamentally, polygamy presents different questions than SSM. Now, I am not sure that anti-polygamy laws which do not address questions of formal marriage might well run amok with privacy rights, absent other considerations like nonsupport or fraud.

Seems like there might be some knotty discrimination arguments against that. You'd be treating wives 2-5 as less deserving of benefits than wife #1. What would be the grounds for that, that they didn't get there first?

The better way would simply be to require that the employer provide the benefit based on the employee's status as "married" or "unmarried." If you're married to more than one person, the amount of the benefit remains the same. It means that each spouse shares in the benefit jointly.

"Jointly" - is that a legal concept?

Wouldn't it mean that either 1) some "married" employees would incur multiples of the health costs as would those with only one, or at least, less, spouses, which would eventually lead their insurance provider to raise the company's premiums and/or 2) if there are policy limits per "family" then eventually the employee with multiple spouses would hit the ceilings and then the screams of discrimination start anyway.

And that does nothing to prevent the multiple welfare benefits problem.

And I forgot the reduced revenues from the multiple tax deduction and exemption issues as well, plus, as seems to be the case in nearly all choices, the other unintended consequences that I haven't thought of, which often are totally unpredictable except using good ol' 20/20 hindsight.

At some point all that has to outweight the cruel and unusual punishment problem, no?

If the government's interest is stable family groupings then it is very plain that UT's culture of marriage &divorce is much better than MA's culture of marriage &divorce. (In this artificial example to demonstrate the point I am making.)

Without knowing the marriage rate, knowing the divorce rate doesn't contribute to developing a good policy.

That is why I think that fundamentally, polygamy presents different questions than SSM.

Well, sure, just like intra-family marriage, cohabitation contracts, and marriages to minors present different sets of questions*. But who do we want empowered to answer those questions--the people? the legislature? the courts? And if we erect a barrier to one of these entities enacting laws, how do we draw a consistent, coherent boundary that decrees which answers are "beyond the pale" for the deciding body to consider?

*We could throw in anti-miscegenation laws, "shotgun weddings", and historical handling of bastardry/inheritance as well, if we really wanted to get controversial.

Unless someone can show me how the decision is internally contradictory, or contradicts the court's jurisprudence on equal protection, I will presume the ruling is legally correct.

Let's be clear. The SSM crowd is not looking for 'rights' they are looking for 'legitimacy'. Civil unions in various states that afford same sex couples the same 'rights', like inheritance, hospital visits, etc., are not acceptable to them. Marriage is what they want, because it places their unions on the same footing as those of heterosexual couples.

This is true.

to quote Shannon Minter:

It's not just about marriage, it's about dignity and respect -- which was the crux of our case.

The problem of course is that no judiciary can enforce dignity or respect.

the rich and their sons tend to marry up all the desireable brides (for lack of a better term, but you get the general idea), which tends to leave an underclass of surplus unmarried young males.

You are assuming that there are a substantial number of women willing to marry a man who is already married, and that these women would not be willing to marry anyone else while married . You also ignore the 50% divorce rate, which would imply that those unmarried young men would soon get their turn.

Of course, if there are a substantial number of women willing to marry a rich man who is already married, then they must have a problem with the institution of monogamy, which means they would not make very faithful wives.

You are assuming that there are a substantial number of women willing to marry a man who is already married, and that these women would not be willing to marry anyone else while married . You also ignore the 50% divorce rate, which would imply that those unmarried young men would soon get their turn.

You're making the mistake of applying trends in our current society to the effects in a society in which polygamy has already been normalized.

And if we erect a barrier to one of these entities enacting laws, how do we draw a consistent, coherent boundary that decrees which answers are "beyond the pale" for the deciding body to consider?

Good question - after we have current marriage equality, i.e. all citizens can license their marriage with a spouse regardless of their gender as opposed to just 50% of them having that acknowledged right, we can start looking at situations that involve factors that are currently universally proscribed and potentially not supported by the existing contract.

You're making the mistake of applying trends in our current society to the effects in a society in which polygamy has already been normalized.

American society can not be compared to Islamic society.

A huge majority of American women are absolutely opposed to sharing a man, and there is no reason why a state Supreme Court finding a right to polygamy would change that. Also, half of all marriages end in divorce, and there is nothing about polygamy that somehow insulates it from divorce.

@oren: "What constitutes a bona fide marriage is fairly well settled law. Courts adjudicate it all the time for immigration purposes."

Irrelevant. Immigration won't be an option as its federal law. Courts won't be adjudicating SSMs in most circumstances.

I'm saying that the same procedure from immigration law is applicable. There's not a huge amount of difference between state laws on what constitutes a bona fide marriage.

Think about it. I register John as my spouse. We comply with everything we need - e.g., state tax filings, apartment rental, etc., etc. Really, we're just best friends, and not romantically involved, but he's my I.C.E. guy anyway, so we just made it legal. No one is going to investigate if we're having sex too.

Without a clear intent to live together permanently, that is fraudulent. Quoth the court:

[A marriage is bona fide if it falls within ] the common understanding of a marriage, in which two parties have undertaken to establish a life together and assume certain duties and obligations.

More to the point:

if the subjects agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at all.

A huge majority of American women are absolutely opposed to sharing a man, and there is no reason why a state Supreme Court finding a right to polygamy would change that.

Really? Static analysis much? As I recall there used to be a "huge majority"* opposed to interracial marriages, what do you suppose would happen after a few decades if the courts started overturning anti-miscegenation laws?

Also, half of all marriages end in divorce, and there is nothing about polygamy that somehow insulates it from divorce.

Barring some actual divorce statistics of polygamous marriages (not societies where they are permitted but the actual subset of polygamous marriages), this is a rather bald assertion.** Especially since the example of Saudi Arabia shows your an actual outcome contrary to your prediction.

In any case, this avoids the question of whether the people, the governments, or the courts should be allowed to tinker with the laws which would eventually change our culture to change these behaviors and preferences.

*I would very much like to see the survey where the "huge majority" was asked this in a thoughtful manner.

**Actually, there might be something in the personality types who are attracted to polygamous marriages which would modify the divorce rates. But separating that effect out from variables like local divorce laws, individual financial situations, and cultural pressures would be very hard to do.

Well, sure, just like intra-family marriage, cohabitation contracts, and marriages to minors present different sets of questions*. But who do we want empowered to answer those questions--the people? the legislature? the courts?

I've never understood arguments that the courts "shouldn't decide" this kind of thing. If someone files a lawsuit with a demand for a marriage license, the court has to rule for or against them. Unless the case can be dismissed on procedural grounds, the court has to decide whether or not applicable law entitles the plaintiffs to the relief demanded. The court doesn't get to say "we refuse to decide this case" and let the verdict sit in some kind of indeterminate quantum state a la Schrodinger's cat.

I agree with you about the points of what is a bona fide marriage, but don't you agree that it is at least possible to decide that the benefits are worth building a life together even if it doesn't involve sex (and might allow sex with outside persons), etc? What is missing from your analysis is a clear point that the specific people you are accusing are INTENDING to separate as soon as it is practically convenient.

I would hold convenience marriages to the same standard that they are held to in immigration cases. If you share a residence, have joint finances, have taken on debt together, etc. then all is good. If, OTOH, you have people otherwise leading fully separate lives, then it is not.

I know what sort of evidence the government requires in immigration cases, having gone through that with my wife on her adjustment of status. I don't think that you can argue that every marriage of convenience is a fraud however.

I really would like to hear some serious arguments at to why this won't happen here.

because its already been tried here, in utah.

What's been tried? Polygamy in Utah? You know the reason it went away was not because it was tried and didn't work, but that it was tried and the United States wouldn't accept Utah into the union because polygamy was "icky." Right? You know that? So are you suggesting then that what should be done is gays should be allowed to marry then in a few years that marriage can be taken away because we'd have tried it then?

It is ironic that Iowa makes it very difficult to
amend its constitution formally.

Not true. The gold standard is 2/3 of legislature, Iowa only requires simple majorities in consecutive sessions.

Just because Iowa is not the hardest state for amending its constitution does not make my comment "not true." Getting simple majorities to vote twice is harder than getting them to do it just once.

Visitor Again:

I just hope the day never comes that they decide
that, because of the crimes against Palestinians,
Jews are no longer human beings with civil rights.

Ah, the slippery cliff argument aka the slippery tightrope argument.

Not to worry, should the Iowa Supreme Court take this next step, I'm 75 percent sure the U.S. Supreme Court would hold that this classification violates equal protection. Sure, it would withstand rational basis scrutiny, but the U.S. Supremes would probably apply strict scrutiny because religion/ethnicity is involved.

I was not trying to make a slippery slope argument. Rather, I was using an extreme example to show that there is no limit on what the courts could do. I don't believe there is much chance of this happening. And, of course, the US Supreme Court would overrule such an opinion by a State court...but what if it is the US Supreme Court that makes the ruling?

There is no limit on the changes that the courts can impose on our society. It is woefully difficult for us to amend the constitution using the method provided in the document itself. But it is far too easy for the US Supreme Court to do it. I wish I knew how to solve this problem. The only thing I can do is impress on the courts the need to use this power sparingly.

There have been times in our past where our Supreme Court has been as ineffective as the Israeli Supreme Court. The Court derives its authority from the consent of the governed far more strongly than any other branch. After all, they don't collect taxes, control army units, etc. All their power is soft power. Piss off the people enough and they will be ignored by the other elected branches.

When did I ask if American non-Muslims will soon be demanding the right to polygamy and paedephilia?

If you follow what is happening in Europe, and Canada, and beginning to occur here as well, is that Muslim immigrants refuse to assimilate nor do they even integrate. They have no use for our culture, and immediately go about doing in our countries the things they do at home, like implement Sharia law and marrying multiple wives and 9 year old girls (some who are Xtians that they kidnap, force to convert and then force to marry them, but that's another disgusting story altogether).

Muslims, not other Americans in any great number, will demand that we allow them to marry multiple women and 9 year old girls. What I am afraid of is that they will have a good legal case based on exactly the same reasoning that courts are using to permit gay marriages: equal protection, approved victim status and they'll even have 1st Amendment religious freedom grounds too, probably (IANAL). And if we don't give in to them, cars will burn in the streets like in France, for starters. And their peculiar ideas of "marriage" will be only one of a growing list of demands backed by ugly and violent protests. Muslims already have huge insular communities in both Michigan and Minnesota to name just two.

Please tell me that I have nothing to fear here and why not. Call me paranoid or Islamophobic if you will, but perhaps you need to follow what is going on in formerly Western societies like the UK, Sweden, France, Norway and lots of others. Take a read sometime:
Jihad Watch

Regarding polygamy, I find it telling that everyone discussing it has taken for granted that it means only a single man married to multiple women. Nobody even considers that it could also mean a single woman married to multiple men, or equal numbers of each.

Polygamy carries with it some significant structural changes to marital law. Same sex marriage does not. That isn't a reason to permanently prevent it, nor a justification for it, but it is a significant reason why allowing same sex marriage is different from allowing polygamy.

For example, is the polygamous marriage a collection of individual binary marriages or is it a group. What if one person dies or divorces, what is the legal status of the remaining participants. (As in, if a man with two wives dies, are the women still married to each other, or not).

Significant parts of law take for granted that someone's (currently one and only) spouse is their defacto next of kin and gets the final say on a lot of issues. What if there are two spouses and they disagree?

Of course, there is no reason laws cannot be written or adapted to fit these situations, but they aren't now. Same sex marriage requires no change whatsoever to the existing laws except those barring entry.

Note that a number of people have declared that a gay man married to a woman who is his friend is by definition committing fraud. Kind of at odds with the "gay men have the same right to marry a woman as a straight man" idea, eh?

There is nothing preventing straight people from entering a same sex marriage, because there is no legal requirement for either love or sex. Homophobia, will, of course, pretty much prevent it from happening, as well as the fact that they'll still have to divorce if they ever want to marry anyone else.

But as a reason to prevent all gay people from marrying? Because some miniscule percentage of straight people, all of whom are currently equally able to enter an opposite-sex marriage of convenience, might use marriage for something other than its general intent? Bah.

Significant parts of law take for granted that someone's (currently one and only) spouse is their defacto next of kin and gets the final say on a lot of issues. What if there are two spouses and they disagree?

That, at least has a simple solution. Require all marriages to be an even number of people. If you want a second spouse, you have to add a third spouse at the same time ;-)

Note that a number of people have declared that a gay man married to a woman who is his friend is by definition committing fraud. Kind of at odds with the "gay men have the same right to marry a woman as a straight man" idea, eh?

There is a point to that. However, I think that those arguments are wrong at least as categorically applied. To summarize my reasons, you can get married for benefits but you end up with a legal obligation to build a joint life together. In short, if you buy a house together, fine. If you keep separate finances, etc. not fine.

We've long established, as a nation, that romantic and/or sexual relationships between consenting adults are largely none of the governments business - until we begin to formalize them with marriages and such, or attempt to dissolve them.

Opposite sex couples that choose to marry have a wide array of rights, privileges, and resources made available to them that same sex couples do not, not least among them, a relatively orderly mechanism for dissolving such relationships (divorce). A good beginning take on the differences between civil unions and marriages may be found at ; short of visiting the link, I would summarize by pointing out that marriage confers a little over 1000 right/privileges at the federal level (and 300 or so, depending on which state, at state level), and that is before we consider 3rd party private issues - insurance, memberships, etc.

With all that clearly in mind, in any system where "equality before the law" is a precious value, one must hold any discriminatory statute to the highest level of scrutiny. A blind driver poses distinct and immediate risks to others with the technology available to us today - a gay couple, on the other hand, poses no heightened risk to anyone - and by promoting the notion of monogamy (ssm), reduces epidemiological risk, reduces long term care costs (those in committed relationships utilize LTC services with less frequency), and improves the odds for economic stability of the persons in question...

Significant parts of law take for granted that someone's (currently one and only) spouse is their defacto next of kin and gets the final say on a lot of issues. What if there are two spouses and they disagree?

We can use our judicial system to sort those out. Kind of like when a woman has been brain-dead for the better part of a decade. Her husband feels that enough is enough and wants life support ended. Her parents want her kept alive indefinitely by any means possible. So they go to court and sort it out. Kind of like that.

Oh its even more complicated than that - biblical/mormon/middle eastern polygyny marriages are the situation of the man having multiple contracts, the wives are not legally connected at all. So all the current contract's attributes designed to provide continuity for the family become mere 'loot' and/or 'debt' to be divided between the surviving spouses, incredibly congest the court systems and provide little in the way of family continuity.

I agree, letting all citizens have reasonable license with a spouse to the existing '2 cosigners, mutually exclusive' civil contract is vastly different than saying the state must additionally craft a new 'more than 2' capable contract for people who already have license with a spouse to the existing one.

What I was envisioning was a system whereby the benefit would be prorated to the married partners: if the employer currently provides the employee's insurance plus $300/mo for the employee's spouse, the new system would provide for the employee's insurance plus $150/mo for each of two spouses, or $100/mo for each of three spouses. It then would fall to the family to make up the difference between the premium and the employer contribution. This means that the insurer is still receiving the same premiums as it would have received under the current system.

As far as caps are concerned, I believe those are calculated on an individual basis, rather than on a per family basis, so there would be no problem with hitting the caps sooner.

To summarize my reasons, you can get married for benefits but you end up with a legal obligation to build a joint life together. In short, if you buy a house together, fine. If you keep separate finances, etc. not fine.

Is this really a requirement for a legitimate marriage? I've been married for years, and other than taxes, my finances are completely separate from my wife's finances (we got married during the housing bubble and recognized it as such, so we don't own a house yet).

And it all happened so slowly, as they gave in a little at a time over the last couple decades until it's probably too late to stop it any more. Of course, this thread is only about marriage, but that is only a minor component of what Islam will try to force down the throats of Western societies in the next 10-20 years.

geokstr—your original comment was about Muslims in Europe and Canada. Citing one incident in Nigeria and another in Pakistan as a way to support a generalization about Muslims in Europe and Canada (that some nontrivial number of them kidnap Christian girls, force them to convert to Islam, and rape them) is a complete non sequitur.

PC: I actually did what every lawyer warned me NOT to do and handled all the paperwork for my wife's immigration and adjustment of status myself. There were practical reasons I could take some steps which lawyers couldn't in terms of expediting things, but it meant I ended up learning a fair bit about immigration processes in the process.

BTW, the major reason for handling stuff myself was that I was able to move to my wife's country for six months and apply through the US Embassy there, thus avoiding the 1-year-plus backlog for having things be processed in the US BCIS facilities.

I'm not saying that there isn't a case to be made for polygamy. I'm not saying that there isn't a case to be made against polygamy.

But the case for same-sex marriage is NOT the same case. Using the fear of one to deny the other is clear prejudice. Let polygamy stand or fall on its own merits.

For that matter, if the model people are using is one man with multiple (separate) contracts with different women, same sex marriage is utterly immaterial, and whatever is keeping it from happening now will still keep it from happening if marriage equality for same-sex couples is recognized.

Yup, all part and parcel of living in a backwards country without decent respect for the rights of women.

Interestingly, there is a decent correlation between states in which there are forced marriages and states that burn gay people alive. In fact, I can't think of any states that are tolerant of gays that also tolerate arranged marriages ...

Oren: I lived in a majority-muslim country for six months. Not as bad as the Islamophobes would make it out to be, but there were some problems, from my POV at least.

Sorry, to be clear, I was talking about a muslim community in the US. If anyone attempted to abrogate my liberty in a manner common in most Muslim countries (sauf Turkey), I would almost certainly pick up a gun.

Your original comment made it sound like these kidnappings were happening in Europe. Are you ceding that point?

Sure. I never intended it to seem that this was happening in Europe, and it was only a side comment to the marriage issue anyway.

And I didn't mean to hijack this thread to a discussion of Islam, per se. My whole point was to wonder if the same legal reasoning being used to redefine marriage for the purpose of permitting SSM would be just as applicable to permitting other forms of marriage, and that issue will soon enough be here. NPR, not normally known as Islamophobic, reports that some estimates are that "50,000 to 100,000 people" live in the US in polygamous Muslim families:
Some Muslims in U.S. Quietly Engage in Polygamy

In addition, forced marriages to underage girls is common in some major Muslim countries and "This practice may also be prevalent to a lesser extent amongst Muslim communities in other countries":
Contemporary Pedophilic Islamic Marriages

No one seems to want to address that issue, so I'll repeat: equal protection of the law and approved victim group status are the reasons for granting equal status to SSM, right? Muslims would have both those going for their preferred marriage practices, plus first amendment freedom of religion. So why would polygamy and child marriage not be permitted in the near future under the same reasoning?

About arranged marriages, federal immigration law exempts people who come from backgrounds where arranged marriages are generally entered into sight-unseen as it were from the visitation requirements on fiancee visas.

I.e. normally to get a fiancee visa, you have to prove you physically met, OR that you come from a culture where arranged marriages are the norm AND would not normally meet before marriage.

The country I lived in was Indonesia. It was interesting to see the strange ideas that Muslims seem to have on the connection between Mosque and State..... People are still thrown in jail in that country for the crime of heresy though the only cases I saw there were people accused of heresy against the Protestant religion.....

polygamy poses deeper questions of how the legal arrangement would be managed as well as a fundamentally different set of rational basis questions.

I don't think that Muslims would necessarily be entitled to official recognition of plural marriage. I do think that recent supreme court decisions would seem to make polygamy prosecutions more difficult absent issues of outright fraud (claiming benefits) or non-support issues.

If Muslims want to secretly have polygamous families, fine as long as they don't expect us to re-engineer civil and family law to meet their needs. I dont have a problem with that. If they want to claim in court that women don't have an equal right to divorce and shouldn't before our laws, that is a different matter. So.....

Child marriage would still be prohibited on for the same reason that I don't think the Mass. proposal to extend child pornography laws to include those over 60 would fly: reasons of consent requirements.

On polygamy, recognizing legal rights on polygamous marriages poses a number of practical concerns which I don't think the court can force on everyone. Marriages with more than one spouse would need to be clarified. Are these handled like business partnerships, i.e. so that when one partner dies, the others are still in a marriage (possibly a same-sex marriage)?

-- Child marriage would still be prohibited on for ... reasons of consent requirements. --
.
The age of "consent" can be legislated, and for purposes of marriage, currently varies from state to state [parents and judges can provide the legal "consent" for minors]. Is there a constitutional basis for setting a minimum age for getting married?

-- If Muslims want to secretly have polygamous families, fine as long as they don't expect us to re-engineer civil and family law to meet their needs. I dont have a problem with that. If they want to claim in court that women don't have an equal right to divorce and shouldn't before our laws, that is a different matter. --
.
But if they set up an independent system for adjudicating disputes and enforcing the remedies, that wouldn't be seeking any sort of endorsement or recognition from our legal system. Surely, the right to be left alone can reach that far in matters that pertain to religion and marriage.

But if they set up an independent system for adjudicating disputes and enforcing the remedies, that wouldn't be seeking any sort of endorsement or recognition from our legal system. Surely, the right to be left alone can reach that far in matters that pertain to religion and marriage.

Sure. Provided that fraud, non-support, and other criminal matters are not at issue, that is fine. Once crimes are committed according to our laws, though, they can't hide behind their own separatist systems and claim the courts don't have jurisdiction. Simple, bright line.

Also regarding the age of consent and religious groups. In Pennsylvania for a while, the age one could consent to get married was something like 7, and the only required process was to get friends together and announce you were married.

This wasn't a Muslim influence, but rather a Quaker one. Quakers have generally held that legal adulthood (as far as the Meeting goes) occurs early, so even children could have VETO power over meeting agenda items. Abuses were generally expected to be controlled through grass-roots pressure.

-- Once crimes are committed according to our laws, though, they can't hide behind their own separatist systems and claim the courts don't have jurisdiction. Simple, bright line. --
.
Polygamy is proscribed, with mild criminal sanctions. How do you square your bright line rule with "If Muslims want to secretly have polygamous families, fine as long as they don't expect us to re-engineer civil and family law to meet their needs."?
.
My hypothetical is to allow polygamy (no legal proscription, with an eye on eventually obtaining social acceptance) on the condition that the intra-marriage disputes are resolved within "the church" or whatever organization sanctions the polygamous unit. Equal rights and all that, with a religious overlay to further insulate the practice from interference from prosecutors and the courts.
.
-- Child marriage would still be prohibited ... In Pennsylvania for a while, the age one could consent to get married was something like 7 --
.
Same question as above, as to how you reconcile the two statements, i.e., which one takes precedence, "Child marriage would still be prohibited" or "the age one could consent to get married was something like 7"? I was looking for a constitutional argument that would support "Child marriage would still be prohibited," and in particular, was fishing for the age that the constitution attaches. The current system, the way I read it, is to shy away from "one size fits all," and give judges the power to substitute their consent for that of a person who is legally a minor. http://www.coolnurse.com/marriage_laws.htm

einhverfr, I agree that the US Supreme Court only has "soft power." But the court has exercised tremendous influence during the last 150 years and this should not be discounted.

If the court were to issue a serious of outrageous decisions, eventually the other two branches of government would start to ignore it. But the court could also push the edge of what is possible; the President and/or Congress would be very reluctant to disregard the court.

If I agree that arbitration is binding, go through that arbitration and then sue, the court will probably laugh at me, even if the arbitration arrangements were not part of an official legal process.

Now, if the arbitrator is 100% one-sided I might still be able to challenge it in court. But if we come to an agreement how to handle it outside of court, I would expect courts to be relatively (though not totally) deferential to such arrangements. Now, even in this case, it wouldn't prevent someone from going to the courts FIRST, and even if there was a "binding sharia arbitration clause" in some formal contract, the courts might or might not recognize it.

So I think there is a gray area regarding civil claims that there isn't in criminal matters.

The understood meaning and purpose of adopting the constitutional provision to disable the Legislature from granting exclusive privileges would prevent the judiciary from striking down a ban on Same Sex Marriages because such laws have no effect of "granting" an exclusive privilege of marriage to any one citizen or class of citizens. All classes of citizens are allowed to enter into marriage upon same terms and conditions, and same sex couples are excluded upon the same terms and conditions as any other class of citizens. (see: Boomershine v. Uline, 05 N. E. 013, 159 Ind. 500.) Furthermore, exclusion laws have never been viewed as class legislation because exclusion from some privilege (marriage or drivers license for example) seldom imposes new burdens or special obligations on those who are excluded by law.

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